Saturday, July 14, 2007

The Democrats' List of Potential Supreme Court Nominees-- And a Few Words About the Growth of Legal "Farm Teams"


Tom Goldstein was puzzled that only conservative bloggers responded to his very interesting post on likely Democratic candidates for the next Supreme Court seat. Tom suggested that it was because "conservatives recognize the importance of judicial nominations much more than do liberals."

I'm writing this post out of my respect for Tom, and so he doesn't feel unduly neglected from the other side of the political spectrum!

Tom's suggested explanation is not particularly plausible. It's simply not true that liberals don't recognize the importance of judicial nominations as much as conservatives. They recognize them plenty well. If there were any doubts, the last Supreme Court Term brought home the point that elections have consequences, and one of those consequences is judicial appointments. Democrats were very upset at Bush v. Gore for many reasons, but one was that they understood its potential consequences for the Supreme Court-- the Supreme Court would pick the person who would pick their successors. And during President Bush's first term in office, Democrats, while in the minority, filibustered several of President Bush's judicial nominations because they understood all too well that appointments matter. Finally, if we limit ourselves for the moment only to the members of this blog, Sandy Levinson's and my theory of constitutional change, partisan entrenchment, is primarily concerned with the effects of judicial nominations.

Reading the conservative responses Tom also suggested that "There was a repeated view (not surprising from conservative sites, but not entirely meritless) that the left lacks great "heavy hitting" intellects comparable to,for example, Posner, Kozinski, etc." This is perhaps an even more implausible claim. Many of these so-called heavy hitters were placed on the bench from the legal academy. As conservatives are fond of pointing out, liberals currently dominate the American legal academy.

The sheer greater number of liberals in the legal academy has the following predictable consequence: Although conservative scholars have admirably made up for lost time in the past two decades, liberals still constitute a majority of the leading intellectual figures in law in the United States. (I will forebear from offering names out of a desire not to annoy all of my acquaintances in the legal academy who would understandably be aggrieved if they were left off such a list. Just believe me, they are legion.)

The Democrats need only do what Ronald Reagan did-- park some number of the key figures in the liberal legal academy on the circuit courts during the first few years of the next Administration-- and they would have as deep a bench of talent for the Supreme Court as they wanted. Some of the leading liberal lights are too old, others have said things that would make them unconfirmable to the Supreme Court (a trait which they share, by the way, with such heavy hitters as Judge Richard Posner). But there are simply so many very bright and able liberal law professors and former Justice Department lawyers between the ages of, say 40 and 55 that it would take little work to stock the federal courts with them if the next President, working with a Democratic Senate, wanted to. Similarly, a Democratic President will no doubt appoint people to high Justice Department and other Administration positions who would immediately become plausible candidates. (Think of Clarence Thomas's example.).

Thus, Tom's list is fine as far as it goes: it focuses on the existing federal judiciary and law Deans of a few top schools. But if the Democrats take the White House, and make some of these appointments I've just mentioned, the composition of the list will change rapidly. Since John Paul Stevens' appointment in 1975, Supreme Court Justices have mostly been taken from the ranks of sitting jurists. The Democrats may buck that trend, and I for one would encourage it. But if they follow existing practices, we won't really be able to know who are the most plausible members of "the list" until we see the first round of lower federal court appointments (and Justice Department appointments) of the next Democratic Administration. And that will depend, I suspect, on who the Democratic nominee is, as Clinton's, Obama's, and Edward's lists might differ in interesting ways.

In this sense, liberals really are in a different position than conservatives. With only 8 years of Democrats in the White House in the past 27 years, the Democrats are in much the same position that Ronald Reagan was when he and his movement conservative allies took office in 1980. Many of the older experienced Republicans were relative moderates who were not part of the movement. Thus, Reagan had to immediately invest in growing a farm team that would last for an extended period of time. I suspect that is precisely what the next Democratic President will do.

Indeed, Reagan and Ed Meese not only quickly staffed the Administration and the judiciary with movement conservatives, they also played for the long term, by using the Justice Department to train a cadre of young very bright and very able conservatives who could take leadership positions decades later. They also encouraged the growth of the Federalist Society to help create networks for ambitious young people who could serve in Republican administrations, in the legal academy and the federal judiciary. Chief Justice Roberts and Justice Samuel Alito are only two examples of how that long term investment paid off. If the Democrats are wise, they will follow Reagan's (and the conservative movement's) example.


Liberal intellectuals abound and perhaps are a little more keyed in to the importance of the independence of the judiciary than are our conservative brothers. The court needs to be picked for legal prowess and insight, and not for political partisan reasons. Twisting logic on its ear is not legal prowess. The current administration is too bound up in trying to slap both the judiciary and the legislative arms. My God, the Federal government used to be a source of a living fountain for our rights; now it is just a "think our way or no way" kind of despotism.

I actually think it would be a good idea to actually identify the leading left-leaning legal academics who would make good jurists. Too many people - even otherwise reflective folks - in legal academia are overly impressed with the likes of Posner et al.

One of the values of your blog, profBalkin, recently has been a regular stream of invited academic contributors, beyond the basic articles of the principal bloggers writing for you, as MLederman recently presented in catalog form. The guests who write for your blog often add value through the links they provide. It is a pity Tom has written less since moving the website, though I entertained a few importunements from an intern to write there in the dustup over the cert pool. As the catalog ML posted continues to demonstrate, the intelligent writers on the liberal to moderate-liberal part of the spectrum have showed ample industriousness, trying to help some hyperpolitical officials extricate both constitution and good government from a crescendo of predicaments both inside government and in our international interface.

John: Too many people - even otherwise reflective folks - in legal academia are overly impressed with the likes of Posner et al.

Amen! In part I blame this on widespread failure to see through what I have dubbed "Coase's Fallacy", which, generally, holds that redress or prevention of wrongdoing can be equated with the wrong done. When this leads to nonsensical conclusions such as, "Where obeying the law is more expensive than paying the fine for breaking it a firm has a duty to shareholders to break the law in order to maximize shareholder return." As far as my (admittedly limited) scholarship can tell this kind of thinking regularly rests on Coase.

@Professor Balkin,

I wish I shared your optimism that the next President was going to be a Democrat. If I was a betting man I'd say we'll be lucky if we hold the House; I wouldn't even bet on us holding the Senate. Much less do I expect our nation of sheep to put any of the recognized Democrats in the White House.

What concerns me is that folks seem to be putting all their strategic eggs in this one contingent basket. What are we to do if the GOP holds the Oval Office for another term? Emigrate? Is anyone thinking about how we continue to fight the march of despotism under the PNAC if the Dems don't take the Presidency? Heck, do we even really think putting a Dem in the White House will suffice to roll back the damage done, to repudiate or repeal the MCA, H.R. 3162 (the so-called "patriot" act), the initial AUMF?

The possibility of a Democrat President is simply not enough on which to pin our hopes of restoring the Constitution to it's pre-PNAC state of flagging health. And as it's only a possibility, at best, we very much need a contingency strategy.

I think that one problem that needs to be addressed is the gross overrepresentation of Ivy League law school grads -- particularly Harvard Law School grads -- on the Supreme Court. The court now has five Harvard Law School grads. One justice attended Harvard Law School but graduated from Columbia Law School. Two graduated from Yale Law School. Only one graduated from a non-Ivy League law school -- Northwestern. Also, the two justices who recently left the court graduated from Stanford Law School, though Stanford is not Ivy League. I think that we need more balance on the court.

Also, I think that nominees for the Supreme Court ironically tend to be mavericks, even crackpots -- they are nominated precisely because of their unorthodox positions.

JB said,
"Since John Paul Stevens' appointment in 1975, Supreme Court Justices have mostly been taken from the ranks of sitting jurists."

Clarence Thomas was a sitting jurist when he was appointed to the SC, but he had only about one year of judicial experience. That hardly counts.

The only thing that regular Americans will find more distasteful than Conservative Academic Judges like Posner is "Liberal Academic" Judges.

The greats... Warren, Brennan, Marshall... that all progressives wish were still on the Court were not worshiped for their academic approach to law. Their key contribution was understanding of (or willingness to listen to) the real-life struggles of the oppressed, segregated, and downtrod.

If the next President appoints a bunch of liberal academics with no life experience outside the ivory tower, you all are going to be writting "Whats the Matter with Kansas" books again in 20 years.

The Reaga-Bush judges have been so influential because they push a common theme and ideology, one that is also sold to the public on national TV. For over 20 years.

So now maybe the democrats get a term or two. They have to come out strong with a message, a plan, and a slate of appointments. If that plan is simply to put the faculty of Yale/Harvard on the bench and tell the American people they are too stupid to understand legal questions... well it really only will be one or two terms.

Populists, not just academics. Start with Nader, maybe Edwards or Obama if they don't make the nomination, think from there.

Start with Nader??!!

Why not start with Nader's ego's legatee--George W. Bush himself? After all, nothing requires that a Supreme Court justice hold a law degree, nor even that (s)he can put together a coherent sentence.

Do you know the biggest difference between Ralph Nader and God? God doesn't think He's Ralph Nader.

Hostility to Nader kind of proves my point. I don't know anyone else on the left (maybe Zinn or Chomsky) that has more "voice of the people" cred or has more consistently dissented from the machinations of the ideological right. But mere mention of his name sets off most liberal lawyers into a tizzy.

The democrats put up lame candidates and an incoherent message that couldn't even beat a fascist moron by more than 2%. That's pathetic. So now Nader has "ego" because he dared to run against your annointed?

Here's a prediction, democrats will lose in 2008. Why? Because elitist entitlement and academic snobbery will once again drown out the voices calling for a new economic populism. How can I tell? Commentors on liberal legal blogs using phrases like "nation of sheep." I mean, the sheep gave us Congress, and we aren't even putting up a fight there! Don't whine, make Bush publically veto The Free Universal Health Care Act, the Michael J. Fox Stem Cell Cure Act, and the Small Businesspeople Get Free Beer Act.

If a party consistently loses in a democracy, it has two choices. 1) tell the people something new and inspiring, 2) retreat to the courts and appeal to the philosopher kings.

Court dominance lags political success by decades. The 1930s New Deal created the environment and appointments that enabled the Warren Court to have its day. The 1980s Reagan Revolution set up the judiciary dominance that is just today coming into full swing. The window for real substantive change via the courts when starting from behind is at least 20 years! And you have to have a New Deal first!

Balking for Assistant AG!

IN. BalkIN. Not BalkING. sorry. My fingers were shaky with sycophancy.

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